“Temporary” and “Post-Divorce” Maintenance: Formulas . . . or Not ?

Dramatically new “temporary” and “post-divorce” laws about maintenance (formerly known in New York and in other states as alimony) were passed in 2010 and created a formula to calculate spousal support. The introduction of these statutes led many practitioners to predict that negotiations over maintenance will take a permanent back seat to blind application of the legislative formulas based on the parties’ incomes. As clients who have litigated issues about children are well aware, the “presumptively correct amounts” of child support in effect since the 1980s overshadow negotiations by parents and are rarely deviated from in the courts. Has the 2010 legislation created similar knee-jerk resort to hard-and-fast formulas for maintenance as is the case for child support? Well, as with most legal issues . . . “Yes” and “No“.

While it might be a little early to forecast any “trends” in how the trial and appellate courts are applying the maintenance laws long-term, couples need to remember that Collaborative Law and mediation–as alternatives to the court system–provide wide latitude in what spouses can voluntarily agree to in their settlement documents about the amount and duration of maintenance. It’s important to know that Domestic Relations Law § 236(B)(3) (which has been “on the books” for over 30 years) remains intact and viable even after the new laws from 2010. Section 236(b)(3) continues to provide, among other things, that parties are free to arrive at agreements about maintenance so long as “such terms [are] fair and reasonable . . . and are not unconscionable . . .” and neither spouse is “likely to become a public charge”. This is another prime example of why good faith negotiation, full-team collaboration and/or neutral mediation empower adults going through separation and divorce to be creative and practical–instead of tied to arbitrary mathematical formulas created by politicians who are thoroughly unconnected to the circumstances of each family.